John Paul Crumley v. the State of Texas ( 2023 )

REVERSE AND REMAND; Opinion Filed June 22, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00716-CR
JOHN PAUL CRUMLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82474-2022
OPINION
Before Justices Pedersen, III, Garcia, and Kennedy
Opinion by Justice Kennedy
John Paul Crumley appeals the judgment in his conviction for online
solicitation of a minor. In his first of three issues, he argues the trial court abused
its discretion by excluding defensive evidence that would have negated the mens rea
element of the charged offense. In his third issue, appellant challenges the
constitutionality of the solicitation statute as it applies to him. We reject his
challenge to the statute, but we agree the exclusion of evidence was erroneous and
harmful, and thus we sustain his first issue. We reverse the judgment and remand
the cause to the trial court for a new trial. Because all issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was charged with the offense of online solicitation of a minor. The
case proceeded to trial before a jury. At trial, appellant testified he had struggled
with social interactions since childhood. He had been born with a genetic condition
rendering him legally blind to which he attributed some of his difficulty socializing
with his peers. Appellant testified that he preferred communicating and making
friends online. After getting divorced from his wife of several years, appellant began
a romantic relationship with a person he knew as “Jasmine,” which lasted for several
years, despite the fact that they never met in person. At some point, appellant
became aware that the person he knew as Jasmine was sending him pictures she
claimed to be of herself but were actually of another person, and the relationship
ended with Jasmine’s ceasing to communicate with him. Appellant was upset that
he had “invested years in somebody that didn’t exist . . . and now I had to tell
everybody that they were right and that I was an idiot.”
In late 2018 or early 2019, appellant attempted to begin another relationship
online with a person he knew as “Lex,” who he met on a dating website. They
arranged to meet more than once, but each time Lex failed to appear and offered an
excuse. When appellant questioned whether Lex was “messing” with him, she
accused him of “catfishing” her.
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In May 2019, appellant began an online conversation on an application known
as Whisper with an account attributed to “Alyssa TX 13.” According to appellant,
he was upset about being deceived by two people he had met online and determined
he would go on Whisper to find another liar to catch and make that person admit he
or she was lying to him. When appellant asked Alyssa how her day was, she
responded, “good, im 13 u ok with that?” Appellant answered, “If you’re ok with
me being 41.” Appellant continued to exchange messages with Alyssa, asking her
if she had a boyfriend, what kinds of guys she liked, and for her phone number to
text her. Appellant and Alyssa exchanged text messages over the next several days,
with appellant telling Alyssa he liked her, wanted to be in a sexual relationship with
her, and wanted to meet her in person. Alyssa requested he send her a picture of
birth control, and appellant did so. The two arranged to meet in person on May 14.
That day, appellant drove to the designated meeting place, a pharmacy, and texted
Alyssa to come out in front of the store. Appellant was arrested in the parking lot of
the store. The person exchanging messages as “Alyssa TX 13” was in fact Detective
Lee McMillian, an investigator with the child exploitation unit of the Collin County
Sheriff’s Office.
According to appellant, he believed the person he knew as Alyssa was an adult
and not the 13-year-old she purported to be. He pointed to certain of Alyssa’s
statements as “proof” she was not a minor, and he stated that he had looked up the
phone number she gave to him and determined it was not a cell phone number but
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instead a landline. Appellant also conceded that when he was arrested, his
explanation for his presence at the pharmacy was that he planned to meet with the
teenaged Alyssa to tell her how dangerous it is to meet up with people from the
Internet and to tell her not to get involved with older guys. Appellant stated that law
enforcement officers told him that they had a mother and daughter across the parking
lot and that he accepted what the law enforcement officers said was true. On redirect
examination, appellant testified that he was afraid for his life after being confronted
with as many as three deputies who had pointed guns at him before placing him in
handcuffs and questioning him.
The person whom appellant knew as Lex testified for the defense, confirming
she had lied to him about who she was—her name, likeness, and occupation—and
repeatedly failed to meet him in person at agreed upon times and locations. She also
testified that they continued their relationship even after she failed to show at
different arranged meetings. In February 2021, she told him the pictures she had
sent him were not of her, and in February or March of 2022, they met in person for
the first time and agreed to end the relationship.
The jury found appellant guilty of the offense of online solicitation of a minor
as alleged in the indictment and assessed his punishment at six years’ imprisonment.
The trial court sentenced him in accordance with the jury’s verdict. This appeal
followed.
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ANALYSIS
I. Solicitation Statute is Constitutional as Applied
We address appellant’s third issue in which he challenges the constitutionality
of the solicitation statute as it applies to him before his other issues because in the
event it is meritorious, we would render a judgment of acquittal rather than remand
if his other issues have merit. See, e.g., O’Reilly v. State, 501 S.W.3d 722, 726 (Tex.
App.—Dallas 2016, no pet.) (addressing legal-sufficiency issue before remaining
issues) (citing Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010) and
Owens v. State, 135 S.W.3d 302, 305 (Tex. App.—Houston [14th Dist.] 2004, no
pet.)). Compare Ex parte Martin, 74 S.W.2d 1017, 1020 (1934) (reversing judgment
and ordering appellant discharged after concluding statute unconstitutional), with
Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (reversing and remanding
for new trial after concluding trial court erred by excluding evidence favorable to
defense).
An “as applied” challenge to the constitutionality of a statute asserts that a
statute, although generally constitutional, operates unconstitutionally as to the
claimant because of his particular circumstances. Faust v. State, 491 S.W.3d 733,
743 (Tex. Crim. App. 2015). When reviewing the constitutionality of a statute, we
presume that the statute is valid and that the legislature acted reasonably in enacting
it. See id. at 743–44. Because a statute may be valid as applied to one set of facts
and invalid as applied to another, it is incumbent upon the challenger to first show
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that, in its operation, the statute is unconstitutional as to him in his situation; that it
may be unconstitutional as to others is not sufficient. State ex rel. Lykos v. Fine, 330
S.W.3d 904, 916 (Tex. Crim. App. 2011) (orig. proceeding). Therefore, any court
considering an “as applied” challenge to a statute must look at the challenger’s
conduct alone to determine whether the statute operated unconstitutionally. See id.Appellant was charged with and convicted of online solicitation of a minor
under Penal Code § 33.021, which provides in relevant part:
A person commits an offense if the person, over the Internet, by
electronic mail or text message or other electronic message service or
system, or through a commercial online service, knowingly solicits a
minor to meet another person, including the actor, with the intent that
the minor will engage in sexual contact, sexual intercourse, or deviate
sexual intercourse with the actor or another person.
TEX. PENAL CODE ANN. § 33.021(c).
As support for this issue, appellant relies on an opinion from the court of
criminal appeals in which the court examined a facial challenge to the
constitutionality of a former version of the same statute. In Ex parte Ingram, 533
S.W.3d 887, 899 (Tex. Crim. App. 2017), the court addressed a complaint that the
statute’s definition of “minor” allowed the online solicitation statute to encompass
role play about age between adults. In that case, the appellant urged the definition
was overbroad in violation of the First Amendment. See id. at 894 (noting
“‘Overbreadth’ is a First Amendment doctrine that allows a facial challenge to a
statute even though the statute might have some legitimate applications.”). Before
rejecting that appellant’s challenge, the court considered several hypothetical
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scenarios involving an adult complainant representing himself or herself to be a
minor. See id. at 900. The court stated that only one of the listed hypotheticals
“might constitute an offense under the statute and might be protected by the First
Amendment.” See id. (emphasis in original). That hypothetical was:
(e) The complainant is an undercover police officer who is actually 40
years old. She says that she is 16 years old. Unbeknownst to her,
however, the defendant knows the complainant’s actual age and knows
that she is unaware of his knowledge of her age.
Id. Appellant argues that hypothetical scenario “mirrors almost exactly the situation
here,” in which his defensive theory was that he believed Alyssa was an adult lying
about being a minor, but Alyssa was in fact an undercover police officer, such that
his speech was constitutionally protected and application of the online solicitation
statute to that speech is unconstitutional in violation of the First Amendment.
We disagree.
In Ingram, the court was examining a prior version of the statute that defined
minor as “(A) an individual who represents himself or herself to be younger than 17
years of age; or (B) an individual whom the actor believes to be younger than 17
years of age.” See 533 S.W.3d at 895 (quoting prior version of PENAL
§ 33.021(a)(1)). In contrast, the current version of the statute defines minor as
“(A) an individual who is younger than 17 years of age; or (B) an individual whom
the actor believes to be younger than 17 years of age.” See PENAL § 33.021(a)(1).
In this case, the jury was instructed on the current definition of “minor,” such that in
order to convict appellant, it had to find that Alyssa was actually younger than 17
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years of age or that appellant believed she was younger than 17 years of age and thus
reject his testimony and defensive theory.
Other than his reliance on Ingram, appellant does not offer any argument or
authority to “show that, in its operation, the statute is unconstitutional as to him in
his situation.” See Lykos, 330 S.W.3d at 916. Accordingly, he has not met his
burden, and thus, we conclude the online solicitation statute is not unconstitutional
as applied to appellant.
We overrule his third issue.
II. Erroneous Exclusion of Evidence
In his first issue, appellant argues the trial court abused its discretion by
excluding defensive evidence that would have negated the mens rea element of the
charged offense. As discussed above, appellant was charged with and convicted of
online solicitation of a minor under a statute that provides in relevant part:
A person commits an offense if the person, over the Internet, by
electronic mail or text message or other electronic message service or
system, or through a commercial online service, knowingly solicits a
minor to meet another person, including the actor, with the intent that
the minor will engage in sexual contact, sexual intercourse, or deviate
sexual intercourse with the actor or another person.
PENAL § 33.021(c). At trial, appellant sought to offer evidence regarding his
diagnosis with autism and how that condition affects his perception and thought
processes. He argues that this evidence would have negated the elements of the
offense that he knowingly solicited someone he believed to be a minor with the intent
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that the minor engage in sexual activities. The State filed a motion in limine
regarding the introduction of evidence or comments alluding to:
Any reference to the Defendant’s mental state or condition of his mind
before the offense, at the time of the offense, or after the offense,
including but not limited to whether he suffered from paranoid
delusions, was acting unusual, or has any mental disease or defect,
including Autism Spectrum Disorder.
The State argued such evidence was not relevant and alternatively that its probative
value was substantially outweighed by the danger of unfair prejudice, confusion of
the issues, misleading the jury, undue delay, or was needlessly cumulative evidence.
See TEX. R. EVID. 401, 403. The trial court permitted defense counsel to state during
his opening statement that appellant is “autistic and processes information
differently,” does not pick up on social cues, and “once he got fixated on this idea
[that Alyssa was an adult lying about being a minor], the warning signs of how [this]
might . . . look or any of those things never entered his mind.” But, the trial court
ultimately excluded testimony from appellant’s two brothers, as well as expert
testimony for the defense.
The record contains testimony from those witnesses, created as a bill of proof.
Dr. Joshua Masino, who attested to expertise in neuropsychology, testified to
examining appellant and diagnosing him with autism. He also testified as to general
characteristics of those with autism and how such characteristics presented in
appellant. According to Dr. Masino, appellant has rigid thinking “so that once
something becomes fixed in his mind, it’s hard for him to get off of it.” Dr. Masino
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also testified that appellant has difficulty imagining how others perceive things, and
that, at times, he can put too much emphasis on the short term without consideration
for the long term. Appellant’s brothers testified as to their observations of their
brother’s difficulty reading social cues and his rigid thinking such that they struggled
to convince him to change his mind in spite of what the brothers saw as red flags. In
particular, the brothers described appellant’s two online relationship experiences
where the romantic partner’s images appeared to them not to be genuine and the
romantic partner’s excuses for failing to meet in person not to be credible. In short,
they had watched their brother be “catfished” in the years leading up to the offense
by one person then another, both claiming to be beautiful young women who
consistently failed to meet with appellant in person.
Texas law, like that of all American jurisdictions, presumes that a criminal
defendant is sane and that he intends the natural consequences of his acts. Ruffin v.
State, 270 S.W.3d 586, 591 (Tex. Crim. App. 2008). Insanity is the only “diminished
responsibility” or “diminished capacity” defense to criminal responsibility in Texas.
See id. at 593. Other “diminished mental-state” defenses, if allowed, would permit
exoneration or mitigation of an offense because of a person’s supposed psychiatric
compulsion or an inability to engage in normal reflection or moral judgment. See
id. But, both physical and mental conditions may affect a person’s perception of the
world just as much as they may affect his rational understanding of his conduct or
his capacity to make moral judgments. Id. Courts routinely admit evidence of a
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physical abnormality offered to prove a lack of mens rea. Id. Such evidence might
be elicited from the defendant, a lay witness—mother, brother, friend, or neighbor—
or from an expert—an optometrist, physician, etc. Id.In Ruffin, the court of criminal appeals concluded that evidence of a
defendant’s mental delusions, causing him to see a trespasser instead of a police
officer, was relevant to the mens rea element of the offense with which he was
charged and convicted, aggravated assault of a police officer. See 270 S.W.3d at593–94. The court compared this evidence of mental delusions to that of blindness,
which “would be relevant and admissible to rebut the State’s assertion that the
defendant intended to shoot at a police officer.” See id. at 594 (“If, instead of
blindness, the defendant suffers from mental delusions such that he sees a
‘trespasser’ . . . when everyone else around him sees a police officer, he cannot be
convicted of intentionally shooting at a police officer, although he may be convicted
of intentionally shooting at a trespasser.”).
We conclude the evidence here was relevant to rebut the mens rea element of
whether appellant knowingly solicited someone he believed to be a minor with the
intent that the minor engage in sexual activities. Similarly to the defendant in Ruffin
and the court’s example of a blind defendant, appellant offered evidence that his
perception of the world was affected by autism, which may be probative of whether
he believed Alyssa was a minor and whether he intended to engage her in sexual
activities. See id.–11–
Although the trial court judge expressly stated he was not excluding the
evidence under Rule 403, we examine whether the evidence would have been
properly excluded under that rule, as we may affirm a trial court’s ruling if it is
correct on any legal theory applicable to the case, even one that was not mentioned
by the trial court or the appellee. Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim.
App. 2022) (“This principle is known as the ‘right ruling, wrong reason’ doctrine.”);
see also Ruffin, 270 S.W.3d at 597 (holding “expert evidence that would explain
appellant’s mental disease and when and how paranoid delusions may distort a
person’s auditory and visual perceptions is admissible as it relates to whether
appellant intended to shoot at police officers, unless that evidence is otherwise
barred by evidentiary rules”).
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence. TEX. R. EVID. 403. In conducting a Rule 403 analysis, the court must
balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence
already admitted.
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Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018). “[T]hese factors
may well blend together in practice.” Gigliobianco v. State, 210 S.W.3d 637, 642
(Tex. Crim. App. 2006).
Here, we have already discussed the probative force of the excluded evidence
and note appellant’s need for same would be, at least in part, to put his autism
disorder into a mental-disease context and explain its psychological significance.
See Ruffin, 270 S.W.3d at 597. As for any tendency of the evidence to confuse or
distract the jury from the main issue or to be given undue weight, the Ruffin court
expressed “confidence that our Texas judges and juries are sufficiently sophisticated
to evaluate expert mental-disease testimony in the context of rebutting mens rea just
as they are in evaluating an insanity or mental-retardation claim.” See id. at 595(italics in original). Further, we do not conclude the evidence would consume an
inordinate amount of time or repeat what had been admitted, given that the trial court
otherwise excluded evidence referring to appellant’s autism diagnosis and how it
affected his thought processes.
Accordingly, we conclude the exclusion of the testimony from appellant’s
brothers and Dr. Masino was error. 1
1
The record also contains an offer of proof of evidence from a second expert in neuropsychology, Dr.
Annette Jerome, but we conclude examination of whether her testimony was improperly excluded is not
necessary to the disposition of this appeal and thus decline to discuss whether its exclusion was reversible
error. See TEX. R. APP. P. 47.1.
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Having concluded the exclusion of evidence was erroneous, we now consider
whether the error harmed appellant. Appellant argues the error in excluding the
testimony of the experts and his brothers should be analyzed for constitutional error
because their testimony formed a vital core to his defensive theory. At oral
argument, the State conceded that much of the proffered testimony was erroneously
excluded but repeated the arguments in its brief that any such error was not
constitutional and did not affect appellant’s substantial rights.
Generally, exclusion of a defendant’s evidence is non-constitutional error,
except when the evidence forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense. See Walters v. State,
247 S.W.3d 204, 219 (Tex. Crim. App. 2007); Potier v. State, 68 S.W.3d 657, 665
(Tex. Crim. App. 2002). Exclusion of evidence might rise to the level of a
constitutional violation if: (1) a state evidentiary rule categorically and arbitrarily
prohibits the defendant from offering otherwise relevant, reliable evidence vital to
his defense; or (2) a trial court’s clearly erroneous ruling results in the exclusion of
admissible evidence that forms the vital core of a defendant’s theory of defense and
effectively prevents him from presenting that defense. See Walters, 247 S.W.3d at219 (citing Potier, 68 S.W.3d at 665). In such a case, Rule 44.2(a), the standard for
constitutional errors, would apply. Id. Rule 44.2 reads:
(a) Constitutional Error. If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the
court of appeals must reverse a judgment of conviction or punishment
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unless the court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.
TEX. R. APP. P. 44.2 (a), (b).
Either way, it is the responsibility of the appellate court to assess harm after
reviewing the record, and the burden to demonstrate whether the appellant was
harmed by a trial court error does not rest on the appellant or the State. Id. at 219.
Of course, “the parties may assist by suggesting how the appellant was harmed (or
not), but it is the responsibility of the reviewing court to decide whether it is likely
that the error had some adverse effect on the proceedings.” See id. (quoting Johnson
v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001)).
Here, we agree with appellant that the exclusion of the testimony of his
brothers and Dr. Masino was constitutional error because the exclusion of that
evidence effectively prevented appellant from presenting his defense. See Walters,
247 S.W.3d at 219 (citing Potier, 68 S.W.3d at 665). To be sure, he was able to
present evidence that he is not good at social interactions or picking up on facial
expressions and that he once asked someone to teach him how to make friends and
be social. He also stated that he had been catfished once and was upset and felt
foolish when that relationship ended with the other person “ghosting” him. He stated
that after he suspected he was being catfished a second time, he was very angry with
“Lex” and about possibly being fooled again. According to appellant, he “installed
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an application called Whisper because . . . I knew it was full of liars” in order to
redirect his anger towards finding another liar to catch and make that person admit
he or she was lying to him. He testified as to his firm belief that he was talking to
an adult when he was communicating with Alyssa and identified the information and
messages he thought confirmed that belief. But, appellant’s testimony did not
include anything about his thought processes in terms of rigid thinking or difficulty
changing his mind once it has been made up even when confronted with red flags or
contrary evidence.
Thus, we conclude that without the excluded evidence appellant was unable
to fully develop his defensive theory that his autism caused him to have extreme
difficulty changing his belief that he was speaking to an adult lying about being a
minor even when faced with statements from “Alyssa” that “she” was 13 and in
school. He was similarly unable to present evidence to the jury that his autism made
it difficult for him to imagine how others might perceive the same situation he
perceives, such that he would have had difficulty realizing that others might perceive
his chatting online with someone who purported to be 13 to be illegal conduct. Cf.
Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005) (no error excluding
testimony of appellant’s paranoia because, instead of negating mens rea, evidence
only presented excuse for crime); Gassaway v. State, No. 05–07–00922–CR, 2009
WL 1547756, at *5 (Tex. App.—Dallas June 4, 2009, pet. ref’d) (not designated for
publication) (no error when testimony regarding bipolar disorder would have been
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repetitive of appellant’s testimony that he suffered from bipolar disorder and where
expert expressed no opinion whether conduct was result of appellant’s bipolar
disorder).
In reviewing for constitutional harm, we question whether the constitutional
error was actually a contributing factor in the jury’s deliberation, calculate as much
as possible the probable impact of the error on the jury in light of the existence of
other evidence, and ask ourselves whether the error could not have affected the
jury. See Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020). As discussed
above, the excluded evidence was not repetitive of any other evidence in the record
and, therefore, we cannot conclude its exclusion did not contribute to appellant’s
conviction.2 See TEX. R. APP. P. 44.2 (a).
Accordingly, we sustain appellant’s first issue and reverse and remand this
case for further proceedings. In light of this conclusion, we need not address his
second issue of whether the trial court erred by denying defense counsel’s requested
instruction on mistake of fact. See TEX. R. APP. P. 47.1.
2
There was discussion during voir dire of a character, Dr. Sheldon Cooper, on a show called Big Bang
Theory, and how that character is defined as highly intelligent but does not “realize when he is socially
unacceptable” because he has Autism Spectrum Disorder. And, defense counsel stated during his opening
statement that appellant is “autistic and he processes information differently.” But, the charge instructed
the jury “that any statements of counsel made during the course of the trial or during argument are not
evidence, and if not supported by the evidence . . . are to be wholly disregarded.” And, we presume the
jurors understood and followed the court’s instructions in the jury charge absent evidence to the contrary.
See Santillana v. State, No. 05-16-01046-CR, 2018 WL 4784570, at *3 (Tex. App.—Dallas Oct. 4, 2018,
no pet.) (mem. op., not designated for publication) (citing Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim.
App. 2002)).
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CONCLUSION
We reverse the trial court’s judgment and remand the cause to the trial court
for further proceedings.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
PUBLISH
TEX. R. APP. P. 47
220716F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN PAUL CRUMLEY, Appellant On Appeal from the 401st Judicial
District Court, Collin County, Texas
No. 05-22-00716-CR V. Trial Court Cause No. 401-82474-
2022.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Kennedy. Justices Pedersen, III and
Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for a new trial.
Judgment entered this 22nd day of June, 2023.
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